García applied to register the device mark NKS as a Community trade mark for goods in Class 25. Higson opposed, citing its earlier device mark MKS for goods in the same class.  The Opposition Division upheld the opposition, considering that there was a likelihood of confusion since the two signs would be vocalized in a similar manner.  The Fourth Board of Appeal agreed that the opposition should be allowed: the letters ‘N’ and ‘M’ would appear the same to the casual observer and the other letters were identical.  So far as aural similarity goes, the Board recognised that the international radiotelephony spelling alphabet is often needed in order to ensure that the listener has identified the correct letter (ie, ‘M’ for ‘Mike’, ‘N’ for ‘November’).”

In this case the Board went one step further, since it did not take into account the device element of the respective marks. Previously there has been a reluctance to hold that two marks are similar when one letter is different and the marks include a device element.